Decided on November 09,1983

UNION OF INDIA Respondents


- (1.) THE petitioner, a Junior Commissioned Officer posted at present in the Ammunition Depot, Paragarh, has assailed in this application the impugned order of Penal Deduction as well as for issuance of a writ in the nature of prohibition prohibiting the respondents to start and/or initiate any disciplinary proceeding and/or Court martial against the petitioner.
(2.) THE relevant facts as appeared in the petition are in brief as follows : a consignment of 70 M. T. (180 x 200)dispatched by 218 Petroleum Control unit-ASC Calcutta in Wagon No. NR 10808 and WR 38681 under their railway receipt No. A32435 dated 10th November 1980 and A324357 dated 12th November 1980 was received in the Supply depot ASC Panagarh on 26th November, 1980. The above consignment was inspected, checked and unloaded under the strict supervision of station board of officers and railway representative and representative of Supply Depot ASC panagarh on 100 per cent checking in all respects by the Board and the above representatives, a net loss of 5, 273 litres of 70 M. T. and. 5 barrels 200 litres grade B S]a amounting to Rs. 27,739. 82 P. had been ascertained. Necessary endorsement to this effect was made on the railway delivery book and the railway receipts were handed over to the railways as required vide paragraph 1100 of the Regulation of the Army in India, 1962. Board proceedings duly completed to this effect were forwarded to the Station Headquarters Panagarh for countersignature of the Station Commander. The Station Commander countersigned the proceedings without giving any dissenting opinion but agreed with the opinion of the Board as mentioned in the proceedings is as follows :- "the Board consisting of Sri K. P. Mani, the Presiding Officer and Dasarath Singh, member of the Board is of opinion that due care has not been exercised by the sender at the despatching end. Therefore, the loss is due to short dispatch from the dispatching end. The comments from the consignor to be asked for and the loss to be regularised as per existing rules on the subject". The loss being more than 1%, the Station Headquarters was requested in time by the Supply Depot ASC, Panagarh to order a Court of Enquiry to pin point the responsibility and apportion blame for the loss in order to meet the adult requirement. The Station Headquarters ordered a Court of Enquiry vide convening Order No. 6065/q dated 29th january 1981 whereas it should have been done within 15 days from the date of the discovery of the loss as per A. O. 2/75 para 2 (b) (i ). The above Court of enquiry was completed on 7th February 1881 and it was of opinion that the deficiency of 5 x. 200 litre barrels grade B s/a along with contents is attributable either due to wrong counting or expert pilferage between the place of filing to the place of loading or before the wagons were sealed at the loading station, Ex Budge Budge. The remaining less of 4273 litres of 70 M. T. gas may be due to expert pilferage or due to loose shunting enroute or due to jerking and juilting of containers in transit. It was further of opinion that since the loss cannot be attributed to any agency, it is recommended that the loss of 5273 litres of 70 M. T. gasoline and 5 x 200 litre barrels grade B S A be written off and the sum of Rs. 27,739. 82 P. be also written off and borne by the State. The above opinion was submitted to the Station Headquarters for information of the Station Commander. The Station commander by his order dated 22nd february 1981 recommended that thorough investigation enquiring into the circumstances of loading of this consignment be carried out and the blame apportioned suitably, if necessary. The Court of Enquiry re-assembled in the moth of April 1981 and the opinion of the court as well as of the Station Commander were changed even after finalisation of the previous Court of Enquiry and the petitioner and 4 Officers of Supply Depot ASC Panagarh were blamed for the loss, inspite of fact that the Officer who. signed and countersigned the certificate is personally responsible for the facts certified as per Paragraph 5 of the Financial Regulations, Part I. The Court of Enquiry was re-assembled from 20th April, 1981 to 2nd June 1981 and it submitted its report on 3rd June, 1981. This is bad for that it would amount to review of the opinion already submitted by the Court of Enquiry. This is unauthorised inasmuch as such a power of review was not given either in the Army Act or in the Army Rules. The opinion expressed by the second assembly of the Court of Enquiry was to the effect that theft was committed within the premises of the Supply Depot, Panagarh and five persons including the petitioner were made responsible for the theft. The Court of Enquiry recommended that in addition to disciplinary action against the persons responsible penal deduction from pay and allowances should be "effected. It has been pleaded that the second opinion of the Court of Enquiry is wholly bad and)without jurisdiction and no action can be taken on the basis of that opinion as has been sought to be done in the present case by a notice dated 3rd November 1981 imposing penal deduction amounting to Rs. 6000. 00 from the pay and allowances of the petitioner.
(3.) THE petitioner showed cause against the notice issued to him for penal deduction and as no reply was given to the petitioner he made an application on 16th November 1981 and also sent a letter asking the authorities concerned to intimate the action that has been taken with regard to his reply to the show cause notice. In the meantime in April 1981, however, the railway authorities issued a short delivery certificate for the entire loss bearing Machine No. A596368 and a590371 dated 8th and 10th January 1981 respectively. On the basis of these short certificates a claim against the railways for compensation of the loss was preferred by the Supply Depot ASC Panagarh in accordance with the provisions of section 78b of the Indian Railways (Amendment) Act of 1961 which was registered by the railways and the same was under progress with the railway authorities. It has been stated that the General Officer Commanding, Bengal Area, passed an order for penal deduction of rs. 6000/- based on the opinion of the court against which an application was made on 23rd September 1982 annexed as annexure 'd' to the writ application. On 9th October, 1982, the petitioner received a letter from the Administrative Officer intimating that the petitioner's appeal dated 23rd September 1982 has been forwarded to the higher authorities. It has been stated that the petitioner, apprehends that the order for Court Martial would be issued to the petitioner without disposing of the petitioner's application dated 23rd September 1982 and hence the instant application has been made before this Court. It has been submitted that the Court of Enquiry was not properly constituted as one of the members constituted in the Court of Enquiry namely Sri A. K. Sen did not belong to the regular Army and as such he was not competent to be a member of the court of enquiry. It has also been pleaded that under Rule 179 the court of enquiry is required to give opinion in respect of returned. prisoner of war who is still absent or in respect of loss of arms and in no other case. The court of enquiry constituted in the present case is absolutely illegal and without jurisdiction. It has also been pleaded that there was violation of the provisions of Rule 180 of the army Rules as the petitioner was not allowed to cross-examine the witnesses either in the first assembly of the court of enquiry or during the second assembly of the court of enquiry. It has also been submitted that the officer commanding covered up this defect by convening the court of enquiry so assembled for the third time on 16th March, 1982. It has also been submitted that after the final opinion is given there cannot beare-assembly of the court of enquiry. It has also been submitted that the penal deduction of Rs. 6000/- has been ordered before any determination by the court martial and as such the order for penal deduction is absolutely bad and unauthorised. In making this order of penal deduction the procedure prescribed has not been followed and the order has been made with a closed mind which shows that the respondents are determined to punish the petitioner. It has also been submitted that in view of the show cause notice mentioned in Annexure 'a' to the petition directing the petitioner to show cause why penal deduction of Rs. 6000/-shall not be made there is no room for instituting a disciplinary proceeding against the petitioner for his trial by the court martial as section 121 of the Army Act operates as a bar inasmuch as there has been a summary trial under Section 83 to 85 and the petitioner has been convicted and the sentence of penal deduction has, been imposed. It has also been submitted that section 125 is discriminatory as it empowers the officer commanding the Army Corps Division or independent brigade in which the accused person is serving or such officer as may be prescribed to decide before which Court proceeding shall be instituted and if that officer decides that they should be instituted before a Court martial, to direct that the accused person shall be detained in military custody. This unguided and uncanalised discretionary power given to the officer commanding makes rule 125 unconstitutional, unreasonable and violative of Article 14 of the Constitution. It has also been stated that the provision for detaining the officer accused of offences in military custody under section 125 read with section 101 while he is being tried before a Court Martial without any provision for bail is also discriminatory as under the Criminal procedure Code there is provision, for bail. It has also been submitted that the punishment provided in section 52 of the Army Act is 10 years whereas section 380 of the Indian Penal Code provides for punishment for seven years. Section 52 of the Army Act is therefore rultra vires of the provisions of Article 14 of the Constitution. On these grounds the instant application was moved before this court on 16th November 1982. This Court directed the application to be listed for hearing and in the meantime passed an interim order to this extent that no further effect should be given to the show cause notice for a period of four weeks from date. On 14th January 1983 after hearing the learned Advocates for both the parties, the interim order was modified to this extent that the Court martial proceedings would be continued but the final order of the court martial would not be given effect to till the disposal of this application. Thereafter an application for amendment the petition was filed and oh 4th March 1983 this application was allowed subject to any objection that the respondents may take at the time of hearing of the application.;

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